Ottawa, Ontario, this 4th day of October, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN=S ASSOCIATION OF CANADA
Interveners
Docket: T-66-86-B
BETWEEN:
TSUU T=INA FIRST NATION
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN=S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
MOTION
[1] The Plaintiffs have brought a motion in writing pursuant to Rule 369 of the Federal Courts Rules, 1998 that asks the Court for leave to extend the date of service of Dr. Earle Waugh’s March 2006 primary expert report (Waugh Report) to March 27, 2006.
BACKGROUND
[2] On March 26, 2004, Justice Hugessen set out the procedure for the exchange of expert reports:
5. All expert reports for use at trial are to be served by July 15, 2004.
6. Rebuttal expert reports (which shall be limited to answering or contradicting any expert reports produced by others) are to be served by October 29, 2004.
7. Any other expert reports may only be produced by leave of the Court obtained on prior motion.
[3] On October 25, 2005, the Plaintiffs advised that they would be seeking consent to serve the Waugh Report in relation to “Nature’s Law.”
[4] On March 27, 2006 the Plaintiffs served a copy of the Waugh Report on the Crown.
[5] A copy of Dr. Waugh’s curriculum vitae was attached to the Waugh Report..
[6] In March 30, 2006, the Crown made a request of the Plaintiffs to designate the area of expertise for which they intended to qualify Dr. Waugh. In addition, the Crown advised that once provided with a statement of qualifications for Dr. Waugh, the Crown would consent to the late service on the same terms and conditions put forth by the Plaintiffs in respect of the late acceptance of Dr. von Gernet’s methodology report.
[7] The conditions for acceptance of Dr. von Gernet’s methodology report were set out in the Plaintiffs’ response to the Crown’s motion seeking leave to serve Dr. von Gernet’s report. The conditions were:
a) That the Plaintiffs may file a rebuttal report within a reasonable time to be agreed upon by the parties, failing which to be ordered by the Court;
b) That the Plaintiffs be entitled to make further representations to the Court in relation to the effect the proposed report will have on the time required to properly prepare for trial;
c) That the Court makes no finding at this time with respect to admissibility of the proposed report, including in relation to issues of relevance, necessity, exclusionary rules and qualifications of the proposed expert; and
d) The Plaintiffs reserve the right to object to the introduction of the proposed report at trial on the basis of , inter alia, relevance, necessity, and the existence of an exclusionary rule or the qualifications of the proposed expert.
[8] Having not received a response to the March 30, 2006 letter, the Crown, again by letter of May 3, 2006, requested information regarding the area of expertise for which the Plaintiffs proposed to have Dr. Waugh qualified. The Crown advised the Plaintiffs of its concerns regarding adequate time to prepare a rebuttal expert report if necessary.
[9] On May 12, 2006, the Plaintiffs advised the Crown that Dr. Waugh’s areas of expertise were set out in his curriculum vitae, and that they sought consent for the late service of the Waugh Report on the same conditions set for the admission of the Dr. von Gernet methodology report.
[10] At a May 19, 2006 trial management meeting, the Crown advised that it required some information regarding how the Plaintiffs intended to qualify Dr. Waugh as the Waugh Report contained comments and opinions in relation to “ethnohistory, law, linguistics, and anthropology.” The Court summarized its understanding that “they [the Crown] are asking for the information, the areas of expertise you [the Plaintiffs] wish to use in Court so they can consider what they are consenting to.”
[11] On June 2, 2006, I directed the Plaintiffs to provide the Crown with the areas of expertise proposed for Dr. Waugh.
[12] On July 7, 2006, the Crown advised the Plaintiffs of Dr. von Gernet’s areas of expertise in response to the Plaintiffs’ request. The Crown stated:
Dr. von Gernet is an anthropologist and ethnohistorian specializing in the use of archeological evidence, written documentation, and oral traditions to reconstruct the past cultures of Aboriginal peoples, as well as the history of contact between Aboriginal peoples and European newcomers throughout Canada and parts of the United States.
[13] On July 11, 2006, the Plaintiffs provided what they assert was a Statement of Qualifications for Dr. Waugh.
[14] On July 27, 2006, the Crown expressed its concern about the Statement of Qualifications of Dr. Waugh because of its lack of specificity. The Crown indicated that it would be impossible to discern whether any particular statement of opinion set out in the Waugh Report was being given under one, or more, of Dr. Waugh’s alleged areas of expertise. The Crown was also concerned that, given the lack of specificity, it was difficult to determine whether it was necessary to retain an expert rebuttal witness.
[15] On August 23, 2006, the Crown again expressed concerns in respect of how the Plaintiffs intended to qualify Dr. Waugh.
[16] On September 8, 2006, the Plaintiffs provided a proposal regarding the Crown’s acceptance of the late service of the Waugh Report. The proposal contained terms which the Crown had, tacitly, accepted on March 30, 2006.
[17] The proposal did not provide any information on how the Plaintiffs intended to qualify Dr. Waugh.
[18] On September 11, 2006, the Crown advised that it was unable to accept the Plaintiffs’ proposal in respect of the late service of the Waugh Report because it did not address the Crown’s concerns as to how the Plaintiffs intended to qualify Dr. Waugh as an expert.
ANALYSIS
[19] The only real point of contention between the parties is the areas of expertise for which the Plaintiffs intend to qualify Dr. Waugh.
[20] The Crown says it has always been willing to accept late service of the Waugh Report provided the Plaintiffs specify the areas of expertise they propose to qualify him in.
[21] I have already directed on June 2, 2006 that the Plaintiffs provide the Crown with the proposed areas of expertise for Dr. Waugh.
[22] The Plaintiffs initially advised the Crown on May 12, 2006 that Dr. Waugh’s areas of expertise were contained in his curriculum vitae. This was not really precise enough for purposes of trial preparation and that is why I asked the Plaintiffs to provide further details.
[23] The Plaintiffs raise no concerns with regards to the degree of specificity provided by the Crown in relation to Dr. von Gernet.
[24] The Plaintiffs say they have complied with the Court’s direction of June 2, 2006 and refer to their July 11, 2006 e-mail which attached the Statement of Qualifications for Dr. Waugh.
[25] The Plaintiffs say that if the Statement of Qualifications provided by the Crown in relation to Dr. von Gernet is compared with the Statement of Qualifications which they provided to the Crown for Dr. Waugh, the Crown’s complaints about lack of specificity are unfounded and the Statement of Qualifications for Dr. Waugh is more detailed than those typically provided at trial.
[26] I have read the Statement of Qualifications for Dr. Waugh that the Plaintiffs provided on July 11, 2006. The problem with that statement, as well as the previously provided curriculum vitae for Dr. Waugh, is that it is very wide in its scope and covers a great many possible areas of expertise. This is why the Crown is asking the Plaintiffs to make clear which of these many areas they will seek to qualify at trial. Given the broad range of possibilities, the Crown’s request is not unreasonable. It will allow the Crown to prepare adequately and may save unnecessary time and expenditures. What is more, it would cost the Plaintiffs little more than a letter to Crown listing the areas. The Crown has pointed out that if one looks at Dr. Waugh’s curriculum vitae and the Statement of Qualifications provided by the Plaintiffs, the following areas are possibilities:
a) Family medicine;
b) Cross-cultural studies of health and healing;
c) Comparative literature;
d) Philosophy;
e) History;
f) Religious studies;
g) Comparative studies in film and religion;
h) Muslims and Islam in North America;
i) Aboriginal traditions and cultural studies;
j) Indigenous religious traditions;
k) Anthropology;
l) Ethnology;
m) Traditional Aboriginal beliefs systems of values and perspectives;
n) Interpretation and understanding of oral traditions;
o) Linguistics;
p) Traditional Aboriginal laws and governance structures; and
q) “Nature’s law” in respect of traditional governance of indigenous peoples of Alberta.
[27] Preparing to deal with all of these possibilities could involve enormous amounts of time and expenditure. And there is nothing that the Plaintiffs will lose from providing this information other than surprise at trial. At the request of the Plaintiffs, the Court has already made it clear to the Crown and the Interveners that surprise at trial will not be tolerated. And as the history of these proceedings has shown time and again, normal rules cannot be relied upon and the Court must provide its own solutions to ensure this action comes to trial in a fair and orderly manner.
[28] If the Plaintiffs have any problems with the degree of specificity provided by the Crown in relation to Dr. von Gernet, they know they have only to raise the matter with the Court, but they have not indicated any problems in this regard. So I cannot understand why the Plaintiffs are so resistant to providing the clarification for Dr. Waugh that I have already asked them to provide. It would cost so little and could potentially save so much. Consequently, I think it is reasonable that the Plaintiffs provide the information requested by the Crown as a condition for an extension of time for serving Dr. Waugh’s report. In fact, this motion was quite unnecessary and I see no reason why the Plaintiffs could not have cooperated with the Crown to effect the same result.
ORDER
THIS COURT ORDERS that
1. The Plaintiffs will provide the Crown on or before October 13, 2006 with a clear statement in writing regarding the intended areas of expertise for which they will seek to qualify Dr. Waugh at trial. That statement will have sufficient specificity to enable the Crown to determine the type of expert which may be required to rebut the Waugh Report. It will list the areas of expertise with the kind of detail found in paragraph 26 to the reasons for this order, and will designate any other intended areas that are not identified in paragraph 26.
2. If the Plaintiffs fail to provide the statement in accordance with paragraph 1 above, then Dr. Waugh will not be called as a witness.
3. If the Plaintiffs do provide a statement in accordance with paragraph 1, then, upon their doing so, the date of service of the Waugh Report shall be extended to March 27, 2006 subject to the following conditions:
a) the Crown may serve a rebuttal report within a reasonable time to be agreed upon by the parties, but failing agreement at a time to be ordered by the Court;
b) the Crown may make further representations to the Court in relation to the effect of the Waugh Report on the time required to properly prepare for trial;
c) the Court makes no finding at this time with respect to admissibility of the Waugh Report, including in relation to issues of relevance, necessity, exclusionary rules and qualifications of the proposed expert;
d) the Crown retains the right to object to the introduction of the Waugh Report at trial on the basis of, inter alia, relevance, necessity, and the existence of any exclusionary rule or the qualifications of the proposed expert.
4. The Crown shall have its costs of this motion. Because the Crown has always been prepared to consent to the late filing of the report of Dr. Waugh on fair and reasonable terms, and because the Court has already directed the Plaintiffs to provide the information required, and because this motion would not have been necessary if the Plaintiffs had behaved reasonably and provided a simple list of proposed areas, the costs awarded to the Crown shall be payable immediately and in any event of the cause.
“James Russell”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86-A
STYLE OF CAUSE: SAWRIDGE BAND v. HER MAJESTY THE QUEEN ET AL
T-66-86-B
TSUU T’INA FIRST NATION (formerly the Sarcee Indian Band) v. HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: September 28, 2006
APPEARANCES:
Edward H. Molstad, Q.C. FOR PLAINTIFFS
Nathan Whitling
Catherine Twinn FOR PLAINTIFFS
Wayne M. Schafer FOR DEFENDANT
Janet Hutchison FOR INTERVENER
CONGRESS OF ABORIGINAL
PEOPLES
Derek A. Cranna FOR INTERVENER
Jeremy Taylor NATIVE COUNCIL OF
CANADA (ALBERTA)
Mary Eberts FOR INTERVENER
NATIVE WOMEN’S
ASSOCIATION OF CANADA
Michael Donaldson FOR INTERVENER NON- STATUS INDIAN
ASSOCIATION OF ALBERTA
SOLICITORS OF RECORD:
Parlee McLaws LLP FOR PLAINTIFFS
Edmonton, Alberta
Twinn Law Office
Slave Lake, Alberta FOR PLAINTIFFS
Deputy Attorney General of Canada
Chamberlain Hutchison FOR INTERVENER,
Edmonton, Alberta CONGRESS OF ABORIGINAL
PEOPLES
Field LLP FOR INTERVENER,
Edmonton, Alberta NATIVE COUNCIL
OF CANADA (ALBERTA)
Law Office of Mary Eberts FOR INTERVENER,
Toronto, Ontario NATIVE WOMEN’S
ASSOCIATION OF
CANADA
Burnet Duckworth & Palmer LLP FOR INTERVENER,
Calgary, Alberta NON-STATUS INDIAN
ASSOCIATION OF ALBERTA